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COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
SUFFOLK, SS A. C. No. 2018-P-0255
BOSTON GLOBE MEDIA PARTNERS, LLC,
Appellant,
v.
DEPARTMENT OF PUBLIC HEALTH,
Appellee.
ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT FOR
THE COUNTY OF SUFFOLK
BRIEF OF APPELLANT BOSTON GLOBE MEDIA PARTNERS, LLC
Jonathan M. Albano BBO #013850j [email protected] MORGAN, LEWIS & BOCKIUS LLPOne Federal Street Boston, MA 02110-1726 +1.617.341.7700 Attorneys for Appellant
TABLE OF CONTENTS
I. STATEMENT OF ISSUES...............................1II. STATEMENT OF THE CASE............................ 1
A. PROCEDURAL HISTORY.......................... 1B. STATEMENT OF FACTS.......................... 2
1. Birth and Marriage CertificatesAre Public Records in the Commonwealth........................... 2
2. The Registry Makes ElectronicBirth and Marriage Records Publicly Available in Its Registry's Research Room............... 4
3. The Registry's Electronic Birthand Marriage Indexes Only Contain Public Information..................... 8
4. Other Sources of Birth andMarriage Records....................... 9
5. Public Interest Uses of Birth andMarriage Information................. 11
6. The Globe's Public RecordsRequests...............................13
III. SUMMARY OF ARGUMENT..............................15IV. ARGUMENT......................................... 18
A. The Registry's Electronic Indexes ofBirth and Marriage Certificates Meet the Statutory Definition of a "Public Record.".................................... 18
B. The DPH Had the Burden of Proving thatBirthdate and Marriage Records Are Exempt from Disclosure under the Public Records Law................................. 19
C. The DPH Failed to Prove that Disclosing Birth and Marriage Indexes Would Be an Unwarranted Invasion of PersonalPrivacy..................................... 211. Birthdates and Marriage Records
Are Not Intimate Details of aHighly Personal Nature................. 21
2. Electronic Birth and MarriageIndexes Are Not Compilations of Personal Data Entitled to Heightened Protections................27
Page
-i-
TABLE OF CONTENTS(continued)
3. The Superior Court Committed Legal Error in Its Application of the Balancing Test....................... 37
D. The Superior Court Correctly Ruled that the Electronic Indexes of Birth and Marriage Records Are Not Specifically or by Necessary Implication Exempted from Disclosure by Statute.................431. G.L. c. 46, § 33.................... 442. G.L. c. 46, § 34.................... 47
V. CONCLUSION...................................... 49
Addendum (Memorandum of Decision and Order on Parties' Cross-Motions for Summary Judgment
Page
- ii-
TABLE OF AUTHORITIESPage(s)
CasesAttorney General v. Ass't Comm'r of the Real
Property Dep't of Boston,380 Mass. 623 (1980)............................................ 19, 21, 22
Boston Globe Media Partners, LLC v.Department of State Police, Suffolk Civ.No. 15-3396-A, rev'd, 92 Mass. App. Ct.1112 (2017)....................... 12, 13, 43, 49, 51
Bougas v. Chief of Police of Lexington,371 Mass. 59 (1976)................................ 39
Brogan v. Sch. Comm, of Westport,401 Mass. 306 (1987)............................... 22
Cape Cod Times v. Sheriff of Barnstable Cty.,443 Mass. 587 (2005)........................... 22, 38
Champa v. Weston Public Schools,473 Mass. 86 (2015)................................ 20
Attorney General v. Collector of Lynn, 377Mass. 151 (1979)................................ passim
Cunningham v. Health Officer of Chelsea,7 Mass. App. Ct. 861 (1979)....................... 23
Direct-Mail Serv., Inc. v. Registrar of Motor Vehicles,296 Mass. 353 (1937)............................... 33
Doe v. Registrar of Motor Vehicles (Doe I) ,26 Mass. App. Ct. 415 (1988)..... 27, 30, 31, 33, 40
Doe v. Registrar of Motor Vehicles (Doe II) ,1993 WL 496590 (Mass. Super. June 8, 1993).... passim
Georgiou v. Comm'r Of Dep't Of Indus.Accidents,67 Mass. App. Ct. 428 (2006)
-iii-
27, 35, 36, 37
Globe Newspaper Co. v. Police Commissioner of Boston,419 Mass. 852 (1995)........................................ 21, 25, 27, 40
Harvard Crimson, Inc. v. President & Fellows of Harvard College,445 Mass. 745 (2006)............................... 38
Hastings & Sons Publishing v. City Treasurer of Lynn,374 Mass. 812 (1978)............................... 22
New Bedford Standard Times Pub. Co. v. Clerk of the Third District of Bristol,377 Mass. 404 (1979)............................................ 35, 36, 37
People for the Ethical Treatment of Animals, Inc. v. Department of Agric. Resources, All Mass. 280 (2017)
12, 26, 28
Pottle v. School Comm, of Braintree,395 Mass. 861 (1985)........................................ 21, 22, 26, 33
Sec'y of Commonwealth v. City Clerk of Lowell,373 Mass. 178 (1977)............................ 3, 12
Suffolk Const. Co., Inc. v. Division of Capital Asset Management,449 Mass. 444 (2007)............................... 20
Torres v. Attorney Gen.,391 Mass. 1 (1984)................................. 30
U.S. Dep't of Justice v. Reporters Committee,489 U.S. 749 (1989)................... 28, 34, 35, 36
United States Dep't of State v. Washington Post Co.,456 U.S. 595 (1982)................................ 24
IV
Wakefield Teachers Ass'n v. Sch. Comm, of Wakefield,431 Mass. 792 (2000)................................. 23
Statutes and RegulationsG.L. c. 4, § 7, cl. 26........................... passim
G.L. c. 6, § 168A.....................................45
G.L. c. 9A § 6........................................ 45
G.L. c. 41, § 97D.....................................45
G.L. c. 46, § 2A.......................................3
G.L. c. 46, § 2B................................... 3, 8
G.L. c. 46, § 13 (e) , (f), (g) and (h) ........... 3, 8
G.L. c. 46, § 33 ................................. 44, 46
G.L. c. 46, § 34......................................48
G.L. c. 66, § 10......................... 2, 14, 20, 38
G.L. c. 66, § 10A(d) (1) (iv) .......................... 21
G.L. c. 66A...................................... 29, 31
G.L. c. 93H, § 1(a) ..................... 16, 30, 31, 32
G.L. c. 152, § 6......................................35
G.L. c. 210, § 12.................................... 11
950 CMR 32.04 (5) (d) .................................. 10
Other AuthoritiesAlan M. Reisch, Cyber/privacy Insurance: A
Very Brief Primer, Boston B.J., Fall 2015, at 5................................................. 31
American Heritage Dictionary 672 (2d ed.1985)............-.................................. 25
Hetzel, A.M., History and Organization of the Vital Statistics System (National Center for Health Statistics 1997).................. 41
v
Rebecca S. Murray, Freedom of Information and Public Records Law in Massachusetts (MCLE 4th ed. 2015)............................ 20, 23
Restatement (Second) of Torts, §652D (1977) ......... 25
vi
STATEMENT OF ISSUESI.Whether the Superior Court erred by granting
summary judgment in an action under the Public Records
Law declaring that the Department of Public Health had
carried its burden of demonstrating that the disclosure
of electronic indexes of birth and marriage records
would be an unwarranted invasion of personal privacy
under G.L. c. 4, § 7, cl. 26(c).
II. STATEMENT OF THE CASEA. PROCEDURAL HISTORYThis is an appeal from a judgment of the Superior
Court (Green, J.) declaring that electronic indexes of
birth and marriage records maintained by the Department
of Public Health are exempt from disclosure under the
Public Records Law as "materials or data relating to a
specifically named individual, the disclosure of which
may constitute an unwarranted invasion of personal
privacy[.]" G.L. c. 4, § 7, cl. 26(c).
Plaintiff-Appellant Boston Globe Media Partners,
LLC (the "Globe") commenced this action on December 30,
2014 against the Massachusetts Department of Public
Health ("DPH"). See Record Appendix ("RA") 2. The
complaint sought a declaratory judgment determining that
certain electronic indexes of birth and marriage
-1-
certificates maintained by the DPH are public records
under G.L. c. 4, § 7, cl. 26, and an order of enforcement
under G.L. c. 66, § 10(b) requiring production of the
records. RA 13.
On May 4, 2016, the parties filed cross-motions for
summary judgment. RA 3. On August 5, 2017, after
argument, the Superior Court granted DPH's summary
judgment motion, declaring that electronic indexes
listing all births that have occurred in Massachusetts
from 1953 through January 2011 and all marriages that
have occurred since 1983 are exempt from the Public
Records Law under G.L. c. 4, § 7, cl. 26(c) . RA 177-
92. The Globe timely filed a notice of appeal on
September 27, 2017. RA 3.
B. STATEMENT OF FACTS1. Birth and Marriage Certificates Are
Public Records in the Commonwealth.Vital records (e.g., records of births, marriages,
divorces and deaths) have been recorded in Massachusetts
since 1635. Statewide collection of vital records began
in 1841. RA 29.
The Registry of Vital Statistics ("Registry") is a
department within the DPH that collects, processes,
corrects and issues copies of Massachusetts birth,
death, and marriage records. Id. at 29. Members of the
2
public may obtain certified copies of vital records by
placing orders at the Registry counter using the
subject's name. Id. at 30.
Birth, death, marriage and divorce records are also
available at the city or town of the Commonwealth in
which the event recorded occurred. RA 31. (J.A. 3) .
See generally Sec'y of Commonwealth v. City Clerk of
Lowell, 373 Mass. 178, 181 (1977) ("City and town clerks
are requested, on a continuing and regular basis, and
are required to furnish certified copies of birth and
marriage certificates to citizens[.]").
Approximately 4.6 million birth certificates and
2.2 million marriage certificates are unrestricted,
publicly available records. RA 36. Certain categories
of birth and marriage certificates are not available to
the public by statute. See, e.g., G.L. c. 46, § 2A
(birth and marriage records of persons born out of
wedlock); G.L. c. 46, § 2B (preadoption birth
certificates); G.L. c. 46, § 13 (e), (f), (g) and (h)
(original records after amendment or correction of
official record due to adoption, paternity or
nonpaternity determination, and sex reassignment
surgery). The Registry only makes available to the
3
public "unrestricted" birth and marriage certificates
that are not covered by these statutes. RA 33-34.
The public also may purchase hard copies of birth
and marriage certificates from the Registry by mail or
via the Internet. RA 30. Online requests for birth and
marriage certificates are processed through a private
company called VitalCheck with which the Registry has
partnered. , Id.1 In Fiscal Year 2014, the Registry
collected $1,601,343 in fees for certified copies of
birth, marriage and death records; use of the research
room and equipment; and responses to data requests. Id.
at 31.
2. The Registry Makes Electronic Birth and Marriage Records Publicly Available in Its Registry's Research Room.
The Registry operates a research room that is open
to the public. RA 32. Members of the public use state-
owned computer terminals located in the research room to
view electronic "index" information about birth, death,
1 VitalCheck advertises itself as a "fast and convenient way to order certified government-issued vital records online." RA 30. VitalCheck's website also states that, in addition to its vital records services, VitalCheck's parent company, LexisNexis, offers background check services; family history and genealogy; (online) death records; (online) marriage records; real estate records; the "Ultimate People Finder;" personal assets search; and a wide range of public records. Id. at 31.
4
marriage and divorce records. RA 32. The public is
allowed to use these computer terminals during regular
business hours for a fee of $9.00 per hour. Id. These
terminals display index entries for unrestricted birth
and marriage certificates that are publicly available.
Id. at 33-34.
There are two databases searchable through the
public facing terminals. RA 32. One of the databases
was created in 1987 and contains information regarding
(a) births that occurred in the Commonwealth from 1987
through approximately January 2011; and (b) marriages
that have occurred since 1983. The second database,
sometimes called the WebTop database, was created in
2008 and contains birth information from 1953 through
1986, as well as scanned images of birth certificates
for that period. Id.2
The instructions on the public facing computer
terminal screen reads "Enter the complete or the first
2 In 2011, the DPH created a third database for vital records known as the Vitals Information Partnership (VIP) electronic birth registration. RA 35. The VIP birth registration system is not available on the Registry's public facing terminals or through any other means. Id. The Globe's public record request does not encompass the VIP database. Id. at 41-42, 136, 168, 180.
5
few letters of a last name. First name is optional."
It is not necessary to know a person's first or last
name to access the index information. For example, . by
typing in the letters ”AA" into the computer terminal,
one is able to view and scroll through a list of names
of people in the 1987-2011 birth certificate indexes as
well as the 1983-to-present marriage certificate
indexes. It is possible to view all the names in each
index that begin with A by conducting 26 searches using
a different letter of the alphabet as the second letter
of the name, and continue through the alphabet. RA 33.
The WebTop database allows a user to search by 15
possible criteria, including last name, first name,
middle name, gender, city/town of birth, mother's first
name, mother's last name, father's first name, and
father's last name. For example, one may search for all
the births that occurred in the City of Somerville in a
given year, and retrieve a long list of births. Each
entry contains a file name, birth date, last name, first
name, middle name, birth city, and mother's first
name. A user can click on the item, wait a few seconds,
and then see the full birth certificate with more
detailed information. RA 33. Although users cannot
print the results of their search queries from either
6
database, id., there are no restrictions on members of
the public transcribing index information viewed on the
Registry's public facing computer terminal. RA 128-29,
169.
A user can obtain from the public facing terminals
the following birth information regarding a person: last
name, first name, date of birth, place of birth,
mother's/parent's name, father's/parent's name, and the
location of the record in the locked vault. For the
years 1953-1986, the person's middle name also is
available. RA 32. This information is more limited
than what is provided on certified copies of birth
certificates sold by the Registry, which generally
includes: Child's First, Middle and Last Name; Father's
First, Middle and Last Name; Mother's First, Middle and
Maiden Name; Mother's Present First, Middle and Last
Name; Street and City Address of both Parents; Place of
Birth of both Parents; Date of Birth of both Parents;
Parents' Ages at time of Child's birth; Parents' race;
Parents' Occupation; and Name and Address of Attendant
at Birth. Id.
A user can obtain the following marriage
information from the public facing terminals regarding
a person: last name, first name, date of marriage,
7
spouse, place where the license was filed, certificate
number, and the location of the record in the locked
vault. RA32-33. This information also is more limited
than what is provided on certified copies of marriage
certificates sold by the Registry, which generally
include: Spouses' Maiden and Married Names; Spouses'
Dates of Birth; Spouses' Occupations; Spouses' Street
and City Addresses and Zip Codes; Number of Marriages
for each Spouse; Maiden Names of Spouses' Mothers;
Spouses Fathers' Names; Date and Place of Marriage
including, if applicable, Church Name; and Name of
Person who Performed Ceremony. Id. at 33.
3. The Registry's Electronic Birth and Marriage Indexes Only Contain Public Information.
The Registry operates its computer terminals in a
way that ensures the public may only view electronic
records of birth and marriage records that are public by
law. RA 33. See, e.g., G.L. c. 45, § 2A (forbidding
public inspection of birth certificates of children born
out of wedlock or abnormal sex births, or fetal deaths);
G.L. c. 46, § 13 (limiting access to original birth
certificates when the official records have been
corrected due to marriage of parents of children born
out of wedlock; adoption; completion of gender
8
reassignment surgery; or paternity determination). The
Registry complies with these statutory reguirements by
programming its computer terminals to display content
which is updated nightly to remove information that is
not available to the public. RA 34. The computer
terminals do not display entries for records that are
not available for examination by members of the public
on a given day. Id. at 33.
4. Other Sources of Birth and Marriage Records
There are many publicly available alternative
sources of birth and marriage certificate information
concerning Massachusetts residents. RA 129, 169. For
example, the Office of the Secretary of the Commonwealth
has provided its statewide electronic voter list (which
includes dates of birth) to many political parties and
campaigns. Id. at 129-30, 169.
Massachusetts cities and towns generally provide
copies of their voter registration/resident lists
(including dates of birth) to any member of the public
upon reguest. For instance, the City of Cambridge
charges $20 for a CD-ROM of its voter list. RA 130,
169-70.
Other states also make birth information publicly
available. The State of Rhode Island provides its
9
statewide voter list (including dates of birth) to
anyone for $25 on CD-ROM. Kentucky makes its index of
births, marriages and deaths (from 1911 to 1999)
available on CD-ROM for $31.80. RA 130, 170.
Private companies also offer birth date
information. Ancestry.com has posted the Massachusetts
Birth Index for people born in 1901-1960 and 1967-1970.
Users can search Ancestry.com by birth year, city,
partial name, and other ways. RA 102, 170. Instant
Checkmate also operates a website where users can obtain
birth dates and other information, including access to
criminal records, related court documents, addresses,
and known aliases. Id. at 130, 170. Another site,
FamilySearch, has birth records from 1841-1915. Id. at
130, 170.
Marriage certificate information also is available
from multiple sources. The DPH makes public its
electronic index of divorces (which indicates marital
status). RA 131, 171. Ancestry.com has posted the
Massachusetts marriage index for people wed from 1901-
1955 as well as 1966-1970, and allows users to search
by, among other things, birth year, city and partial
name of married persons. Id. Target and Bed Bath &
Beyond offer online wedding registries that anyone can
10
look up to confirm a recent or upcoming nuptial. RA
131-32, 172. The Boston Globe, New York Times and other
papers publish wedding announcements. Id. at 132, 172.3
Other states also make marriage information
publicly available. Washington State sells its index of
Marriage Certificates (1968-2014) in Excel format for
$30. Minnesota offers a searchable index of Marriage
certificates on its web site. Supp. Wallack Dec. f 22
(J.A. 103); 9A Add. Stmt, f 13.
5. Public Interest Uses of Birth and Marriage Information
The Globe regularly collects information contained
on birth, marriage, divorce, and death certificates in
order to report on matters of public concern. RA 132-
36. Birthdate and marriage records often are needed to
verify a person's identity. Common examples are when a
person has a common name, has petitioned the Probate
Court for a name change, see G.L. c. 210, § 12, or has
exercised the common law right to "assume a name which
he deems more appropriate and advantageous to him than
3 The Commonwealth previously has made public an index of all persons who received approval to officiate a marriage for a day in 2014. The Globe used the data to identify marriages officiated by Governor Deval Patrick, including the day and place of the wedding and the names of the wedding couple. RA 131.
11
his family name in his present circumstances, if the
change is not motivated by fraudulent intent." Clerk of
Lowell, 373 Mass, at 184-85 (internal quotation marks
and citation omitted) . See also id. at 183 ("Where a
person is in fact known by two names, either one can be
used. This principle has been applied in about every
connection.") (internal quotation marks and citation
omitted).
In 2015, for example, the Globe filed a public
records lawsuit against the State Police Department
seeking the birthdates of State Troopers. The
birthdates were required in order to obtain from the
Registry of Motor Vehicles driving records of persons
arrested for driving under the influence and who were
believed to be Troopers. See Boston Globe Media
Partners, LLC v. Department of State Police, Suffolk
Civ. No. 15-3396-A. The Superior Court in that case
entered a preliminary injunction later reversed by this
Court for consideration of the Supreme Judicial Court's
intervening decision in People for the Ethical Treatment
of Animals, Inc. v. Department of Agric. Resources, All
Mass. 280 (2017), which interpreted for the first time
the public safety exemption found in G.L. c. 4, § 7, cl.
26(n). Boston Globe Media Partners, LLC v. Department
12
of State Police, 92 Mass. App. Ct. 1112 (2017) (Rule
1:28 Mem. and Order).
Birthdate information also is needed in order to
perform research for news articles, including
identifying trends (such as changes in the birth or
marriage rate across the state), conducting background
checks on candidates for elected office, and verifying
that the state is correctly recording births and
marriage certificates for every city and town in
Massachusetts. RA 82.
6. The Globe's Public Records RequestsOn May 10, 2013, Globe reporter Todd Wallack made
a public records request to DPH asking for electronic
copies of the Registry's indexes of birth, divorce,
marriage and death records. RA 35. The records sought
by the Globe were electronic copies of the same limited
index information that the Registry allows members of
the public to see on computer terminals in its research
room. Id. at 35-36, 168. The Globe intended the public
records request to be for an electronic copy of the most
up-to-date birth index and marriage index made available
on the Registry's public facing computer terminals.4
4 The Globe did not seek a copy of the Registry's centralized VIP database. RA 35-36, 136, 168.
13
On December 20, 2013, the Globe filed an appeal to
the Supervisor of Public Records (the "Supervisor")
pursuant to G.L. c. 66, § 10(b) challenging DPH's failure
to produce any documents or provide a formal response to
the Globe's public records request. RA 37. On February
14, 2014, the Supervisor issued an order to DPH requiring
that the records sought by the Globe "be made available
in accordance with the Public Records Law." Id.
In response to the Supervisor's order, DPH provided
the Globe with responsive death and divorce records, but
refused to provide responsive copies of the Registry's
indexes of birth and marriage records. Id. The Globe
then filed a second appeal to the Supervisor. Id. On
March 28, 2014, the Supervisor granted the Globe's
appeal and ordered DPH to provide the Globe with
electronic copies of the Registry's indexes of birth and
marriage records. Id.
On June 10, 2014, DPH filed a request for
reconsideration with the Supervisor, asking the
Supervisor to reverse his prior rulings that electronic
copies of the Registry's indexes of birth and marriage
records are public records. RA 37, 50-74. On October
14
17, 2014, the Supervisor granted DPH's request for
reconsideration. Id. at 37-38, 70-74. Reversing his
two prior orders, the Supervisor ruled that electronic
copies of the Registry's indexes of birth and marriage
records were exempt from mandatory disclosure on the
grounds that the records were "specifically or by
necessary implication exempted from disclosure by
statute." Id. at 72-73. See G.L. c. 4, § 7, cl. 26(a).
The Supervisor also opined that DPH had made a
"compelling argument" that the information was exempt
because disclosure would constitute an "unwarranted
invasion of personal privacy." Id. at 73. See G.L. c.
4, § 7, cl. 26(c).
III. SUMMARY OF ARGUMENTThe Superior Court erroneously ruled that the DPH
had carried its burden of demonstrating the privacy
exemption applied to the birth and marriage indexes at
issue. The privacy exemption only applies to the
disclosure of "intimate details" of a "highly personal
nature." Unless that threshold legal test is met, the
exemption is inapplicable and no balancing of public and
private interests is required. Because of the public
nature of birth and marriage information, the DPH failed
to carry its burden of proof under that the records were
15
intimate details- of a highly personal nature, requiring
judgment for the Globe as a matter of law. (Pages 18-
26)
The Superior Court ruled that the disclosure of the
birth and marriage indexes would facilitate identity
theft and other malicious uses. The summary judgment
record, however, contained no evidence that disclosure
of the information would pose a risk of identity theft,
and the Court correctly rejected the DPH's argument that
compliance with the Globe's pubic records requests would
result in the disclosure of non-public information such
as records of adoption or gender reassignment. The
absence of supporting evidence in the record, combined
with the legislative exclusion of birth and marriage
information from the definition of personal information
protected by the Data Privacy Act, G.L. c. 93H, precluded
as a matter of law the entry of summary judgment in favor
of the DPH on this issue. (Pages 27-32)
The Superior Court ruled that because the indexes
at issue are compilations of birth and marriage
information, the aggregate effect of disclosure on the
privacy of Massachusetts residents creates a sufficient
privacy interest to trigger the privacy exemption. Cases
recognizing a privacy interest in data compilations,
16
however, have been based on a finding that the
compilations aggregate a combination of personal data
about a particular individual. In this case, unlike
cases involving criminal history record information, the
only information disclosed about any particular
individual is publicly available birth and marriage
records. Summary judgment in favor of the DPH therefore
was precluded as a matter of law. (Pages 33-37)
Assuming that marriage and birth indexes are
sufficiently akin to intimate details of a highly
personal nature to trigger the privacy exemption, the
Superior Court's balancing of the public interest in
disclosure against the asserted privacy interests was
based on an error of law. The Court erroneously assumed
that the Globe's request would not serve as a check on
the DPH's performance of its public functions, and
erroneously excluded from the balancing process the
other public interests served by availability of birth
and marriage records. (Pages 37-43).
The Superior Court correctly rejected the DPH's
arguments below that birth and marriage indexes were
specifically or by necessary implication exempted from
disclosure by statute pursuant to G.L. c. 4, § 7, cl.
26(c). None of the statutes cited by the DPH apply to
17
the electronic database that the DPH permits members of
the public to view in public facing terminals located in
the Registry's office. (Pages 43-49)
IV. ARGUMENTA. The Registry's Electronic Indexes of Birth and
Marriage Certificates Meet the Statutory Definition of a "Public Record."
"Public records" are defined by G.L. ch. 4, § 7 cl.
26, as, in pertinent part:
[A]11 books, papers ... or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the Commonwealth, or of any political subdivision thereof ...
G.L. ch. 4, § 7 cl. 26. Because electronic indexes of
birth and marriage certificate information are
"documentary materials or data" that are "made or
received" by an employee of an "agency" or "department"
of the Commonwealth, the documents satisfy the statutory
definition of public records.
Nor is there any doubt that the Public Records Law
applies to electronic copies of the indexes. The
statutory language expressly covers "documentary
materials or data, regardless of physical form or
characteristicsG.L. ch. 4, § 7 cl. 26 (emphasis
added). See also Supervisor of Public Records Bulletin
18
3-96 (June 6, 1996) ("records created or maintained on
a computer are subject to the disclosure requirements of
the Public Records Law"). As one leading commentator
has stated:
[I]f a records custodian receives a request for electronic records, the custodian is expected, as best to his or her abilities, to provide the records in an electronic format.To respond otherwise could possibly be construed to be in bad faith or counter to the tenets of the Public Records Law.
Rebecca S. Murray, Freedom of Information and Public
Records Law in Massachusetts (MCLE 4th ed. 2015) at 56.
See also 950 CMR 32.04(5)(d) (requiring, records
custodians "to the extent feasible, provide public
records to a requester in electronic format unless the
record is not available in electronic form").
B. The DPH Had the Burden of Proving that Birthdate and Marriage Records Are Exempt from Disclosure under the Public Records Law.
General Laws ch. 4, § 7 cl. 26 exempts from the
definition of public records certain specified
categories of documents or information. These statutory
exemptions to mandatory disclosure "must be strictly
construed." Attorney General v. Ass't Comm'r of the
Real Property Dep't of Boston, 380 Mass. 623, 625 (1980) .
"If a dispute over a withheld document is brought to
court, the statute establishes a clear 'presumption that
19
the record sought is public' and places the burden on
the record's custodian to 'prove with specificity the
exemption which applies' to withheld documents."
Suffolk Const. Co., Inc. v. Division of Capital Asset
Management, 449 Mass. 444, 447, 454 (2007) (quoting G.L.
c. 66 §10 (c)); See also Champa v. Weston Public Schools,
473 Mass. 86, 90 (2015).5
The Superior Court correctly ruled that the DPH
bore the burden of proving that the birth and marriage
indexes are exempt from disclosure. RA 182. Based upon
the summary judgment record, however, it was error for
the Court to conclude that the DPH had shown that the
disclosure of indexes would be an unwarranted invasion
of personal privacy under § 7, cl. 26(c).
5 As the Superior Court noted, as a result of the 2017 amendments to the Public Record Law (enacted after the requests at issue here), G.L. c. 66, § 10A(d)(1)(iv) now provides that "a presumption shall exist that each record sought is public and the burden shall be on the defendant agency or municipality to prove, by a preponderance of the evidence, that such record or portion of record may be withheld in accordance with state or federal law." RA 182 n. 2. The Court correctly ruled that the pre-amendment version of the statute controlled here. Id.
20
C. The DPH Failed to Prove that Disclosing Birth and Marriage Indexes Would Be an Unwarranted Invasion of Personal Privacy.
G.L. c. 4, § 7, cl. 26th (c) provides that materials
or data relating to a specifically named individual,
"the disclosure of which may constitute an unwarranted
invasion of personal privacy," are exempt from mandatory
disclosure under the Public Records Law. The personal
privacy exemption requires courts to apply a two-part
analysis examining (a) whether the information at issue
constitutes "intimate details" of a "highly personal
nature" and (b) if so, whether the public interest in
disclosure outweighs the asserted privacy interest.
Pottle v. School Comm, of Braintree, 395 Mass. 861, 866
(1985) (balancing of public interests is not necessary
when threshold privacy test is not met) ; see also
Attorney General v. Collector of Lynn, 377 Mass. 151,
157 (1979); Assistant Com'r of Real Prop. Dept, of
Boston, 380 Mass. at 625-26. See generally Globe
Newspaper Co. v. Police Commissioner of Boston, 419
Mass. 852, 858 (1995).
1. Birthdates and Marriage Records Are Not Intimate Details of a Highly Personal Nature.
Only if the threshold test of whether the
information constitutes "intimate details" of a "highly
21
personal nature" does the Court balance the public
interest in disclosure against the asserted privacy
interests. See Cape Cod Times v. Sheriff of Barnstable
Cty. , 443 Mass. 587, 594-95 (2005) ("We have held that
subclause (c) precludes inspection only in cases where
disclosure would publicize 'intimate details' of 'a
highly personal nature.'") (internal guotation marks
omitted); Brogan v. Sch. Comm, of Westport, 401 Mass.
306, 308 (1987) (absentee records "are not 'intimate
details' of a 'highly personal' nature, the 'kind of
private facts that the Legislature intended to exempt
from mandatory disclosure'") (internal quotation marks
omitted); Pottle, 395 Mass. at 866 (because the
threshold test was not met, "there is no occasion for us
to inquire whether any invasion of privacy would be
'unwarranted'"); Asst. Comm'r of the Real Prop. Dept.,
380 Mass, at 625-26 ("The public right to know should
prevail unless disclosure would publicize 'intimate
details' of 'a highly personal nature'"); Collector of
Lynn, 377 Mass, at 157 ("we cannot say that disclosure
publicized 'intimate details' of a 'highly personal'
nature"); Hastings & Sons Publishing v. City Treasurer
of Lynn, 374 Mass. 812, 817-18 (1978) ("While we
appreciate an employee's desire not to have his or her
22
income publicized, the plaintiff is not seeking
disclosure of facts involving 'intimate details of a
highly personal nature'") (internal quotation marks and
citation omitted). See generally Rebecca S. Murray,
Freedom of Information and Public Records Law in
Massachusetts (MCLE 4th ed. 2015) at 29 (privacy
exemption "is limited to 'intimate details of a highly
personal nature'").
The dispositive nature of the threshold test was
reaffirmed by the Supreme Judicial Court in Wakefield
Teachers Ass'n v. Sch. Comm, of Wakefield, 431 Mass.
792, 801-02 (2000). The plaintiff in Wakefield argued
that the exemption for personnel records (also found in
c. 4, § 7, cl. 26(c)), requires a showing that the
information in a personnel record constitutes "intimate
details of a highly personal nature." Id. at 800. The
Wakefield Court rejected that argument, stressing that
only the privacy exemption -- and not the personnel
exemption -- requires proof that disclosure implicated
"intimate details of a highly personal nature." 431
Mass, at 801-02. See also Cunningham v. Health Officer
of Chelsea, 1 Mass. App. Ct. 861, 862, (1979) ("Clause
Twenty-sixth (c), exempting material which may
constitute an invasion of personal privacy does not
23
support nondisclosure where the information sought does
not amount to "intimate details of a highly personal
nature.").
The birth and marriage information at issue in this
case bear none of the indicia of intimate details of
highly personal facts. "Information such as place of
birth, date of birth, date of marriage, employment
history, and comparable data is not normally regarded as
highly personal[.]" United States Dep't of State v.
Washington Post Co., 456 U.S. 595, 600 (1982). See also
Doe v. Registrar of Motor Vehicles (Doe II), 1993 WL
496590, at *1 (Mass. Super. June 8, 1993) (age is not an
intimate detail of a highly personal nature).
Any privacy interest in one's age "is weak" due to
"both the nature of the information disclosed and the
availability of this information from many other
sources." Doe II, 1993 WL 496590, at *6. "As
universally-shared conditions, age [does] not mark one
as 'different,' unlike 'intimate details' of one's
personal life." Id. at *7.
"A second reason why age [does] not constitute
"intimate details of a highly personal nature" is
because [it is] not, after all, intimate. "Intimate"
refers to something " [p]ertaining to or indicative of
24
one's deepest nature;" " [e]ssential; innermost ...
[v]ery personal; private." American Heritage Dictionary-
612 (2d ed. 1985). Doe II, 1993 WL 496590, at *6; see
also id. ("One's age is also available to the public,
give or take a few years.").
Any putative privacy interest in birthdate and
marriage information is further reduced by the fact that
"the same information is available from other sources."
Police Commissioner of Boston, 419 Mass. at 858
(internal citations and quotations omitted). See also
Collector of Lynn, 311 Mass, at 157 ("the seriousness of
any invasion of privacy resulting from disclosure of the
records of real estate tax delinquents is reduced since
substantially the same information is available from
other sources"); cf. Restatement (Second) of Torts,
§ 652D (1977) ("there is no liability for giving
publicity to facts about the plaintiff's life that are
matters of public record").
As the Doe Court explained:
Information about an individual's date of birth is widely disseminated in the public sphere. It is available as a matter of public record on street and voting lists maintained by city and town clerks. The court takes judicial notice that it is also available from birth and marriage certificates. See G.L. c.46, §§ 1-2A. Accident reports available from the Registry as a matter of public record
25
contain birth dates, as do the driving histories of persons convicted of motor vehicle offenses, also public records available from the Registry.
Doe II, 1993 WL 496590, at *4.
The Registry routinely provides birth and marriage
certificates to the public (for a fee) and allows the
public to view birth and marriage index information on
its public facing computers (for a fee of $9.00 an hour) .
The same information is available from multiple other
sources, including voting lists and numerous commercial
services (the latter of which, like the DPH, provide the
information for a fee). RA 169-72; see also Doe II,
1993 WL 496590, at *4.
In sum, because public birth and marriage indexes
are not intimate details of a highly personal nature,
"there is no occasion for [the Court] to inguire whether
any invasion of privacy would be 'unwarranted, ' " thus
requiring judgment in the Globe's favor as a matter of
law. Pottle, 395 Mass, at 866.6
6 The DPH argued below that whether disclosure would reveal "intimate details of a highly personal nature" is not an essential element of proving that the privacy exemption applies but merely one of several factors the Court may consider. But the Supreme Judicial Court cases cited above never have been overruled. Most recently, in People for the Ethical Treatment of Animals, 477 Mass, at 291-92, the Court stated that "where the public interest in obtaining the requested information
26
2. Electronic Birth and Marriage Indexes Are Not Compilations of Personal Data Entitled to Heightened Protections.
The Superior Court ruled that "[e]ven if discrete
pieces of the information the Globe seeks are not
considered intimate details of a highly personal
nature[,] the aggregate effect of other disclosed
information on the privacy of the total number of persons
whose data would be disseminated weighs against
disclosure here." RA 188 (citing Doe v. Registrar of
Motor Vehicles (Doe I), 26 Mass. App. Ct. 415 (1988) and
Georgiou v. Comm'r Of Dep't Of Indus. Accidents, 67 Mass.
App. Ct. 428, 435 (2006)). The factors relied upon by
the Court were as follows:
1. The reguests encompassed birth information for
approximately 4.6 million people and marriage
substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield." Id. The Court identified three factors relevant to assessing the weight of the privacy interest at stake: "(1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources." Id. at 292 (citing Police Comm'r of Boston, 419 Mass, at 858). Each of those factors, as shown above, support the legal conclusion that the indexes do not contain intimate details of a highly personal nature.
27
information for approximately 2.2 million people. RA
188 (Order at 12).
2. "[R]eady access to compiled personal
information in the indexes maintained by the Registry
would facilitate identity theft or other malicious uses
in a manner that most individuals would consider an
invasion of privacy." Id. (citing Doe I, 26 Mass. App.
Ct. at 421-22).
3. The cumbersome nature of collecting the
information from public sources other than the Registry
supports a legitimate expectation of privacy on the part
of persons whose birthdates and marriage information is
at issue. RA 189 (Order at 13) (citing Doe I, 26 Mass.
App. Ct. at 427 and U.S. Dep't of Justice v. Reporters
Committee, 489 U.S. 749, 764 (1989).
a. The Superior Court's finding that disclosure would facilitateidentity theft or other malicious uses was not supported by the summary judgment record.
The summary judgment record does not support the
Superior Court's conclusion that disclosure of birthdate
and marriage indexes would "facilitate identity theft or
other malicious uses." RA 188 (Order at 12). The
evidence submitted by the DPH in support of its summary
judgment motion (and in opposition to the Globe's
28
motion) did not contain any evidence that disclosure of
birth and marriage indexes created a risk of identity
theft. See RA 75-81. To the extent the DPH argued that
"malicious uses" of the records might occur, its
argument was based on the misperception that the Globe's
request required the disclosure of restricted, non
public birth or marriage certificates (e.g., adoption
and gender reassignment information). Id. at 75-81,
104-122. The Superior Court correctly rejected that
argument on the ground that, by the DPH's own admission,
the electronic files sought by the Globe were scrubbed
on a daily basis of restricted birth and marriage data,
and the Globe's request sought the records at a static
period of time, precluding any comparison efforts after
changes were made to the records. RA 185.
The Superior Court relied in part on this Court's
decision in Doe I for the proposition that disclosure of
the indexes would pose a risk of identity fraud or other
malicious uses. RA 188 (Order at 12) (citing Doe I, 26
Mass. App. Ct. at 421-22). Doe I was a case brought
under the Fair Information Practices Act ("FIPA") , G.L.
c. 66A, involving the disclosure of Registry of Motor
Vehicle records that contained not just birth dates but
also the address, social security number, and height of
29
the driver applicants. Id. at 416. The Court's opinion
made no mention of the risk of identity theft. Nor did
the Court rule that the driver record information was
exempt from the Public Records Law. Rather, it remanded
the case to permit the Registrar to make an evidentiary
showing that disclosure of social security number, date
of birth, and height was warranted (and that the
Registrar was in compliance with a federal privacy law) .
Id. at- 418.7 On remand, and after an evidentiary
hearing, the Superior Court held that the disclosure of
birth dates, height and social security numbers was not
an unwarranted invasion of privacy. Doe II, 1993 WL
496590, at *8.
The conclusion reached by the Doe II Court that the
disclosure of birthdate information was not an
unwarranted invasion of privacy is consistent with the
approach taken by the Massachusetts legislature in the
Privacy Data Act, G.L. c. 93H. Chapter 93H provided a
remedy for breaches of personal data security, defined
in relevant part as the "unauthorized acquisition or
unauthorized use" of data that "creates a substantial
7 Because the case was brought under FIPA, the custodian bore the burden of proof on this issue. See Torres v. Attorney Gen., 391 Mass. 1, 10-11 (1984).
30
risk of identity theft or fraud against a resident of
the commonwealth." G.L. c. 93H, § 1(a) (emphasis added).
Despite being "one of the country's most stringent
statutory and regulatory schemes relating to data
privacy and security," Alan M. Reisch, Cyber/privacy
Insurance: A Very Brief Primer, Boston B.J., Fall 2015,
at 5, c. 93H excludes birthdate and marriage information
from its protections. The statute instead defines
personal information as a "Massachusetts resident's
first name and last name or first initial and last name
"in combination with" any 1 or more of the following
data elements that relate to the resident:
(a) Social Security number;
(b) driver's license number or state-issued identification card number; or
(c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident's financial account; provided, however, that "Personal information" shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.
G.L. c. 93H, § 1(a) . See also Supreme Judicial Court
Rule 1:24: Protection of personal identifying
information in publicly accessible court documents
(defining "Personal identifying information" as "a
31
social security number, taxpayer identification number,
driver's license number, state-issued identification
card number, or passport number, a parent's birth
surname if identified as such, a financial account
number, or a credit or debit card number").
The decisions of the legislature and the Supreme
Judicial Court to exclude birthdates from the
definitions of "personal information" and "personal
identifying information" underscore the lack of an
evidentiary basis in this case for the Superior Court's
summary judgment ruling that disclosure of birthdates
and marriage information would be an unwarranted
invasion of personal privacy due to the risk of identity
theft or other malicious uses.
In sum, neither the summary judgment record
submitted by the DPH nor this Court's decision in Doe I
support the Superior Court's summary judgment ruling
that the DPH met its burden of showing that the privacy
exemption of G.L. c. 4, § 7, cl. 26(c) applied to the
birth and marriage indexes. The Superior Court's
judgment should be reversed either because the absence
of supporting evidence warranted the entry of summary
judgment in favor of the Globe or, at a bare minimum,
required a trial on the merits.
32
b. The birth and marriage indexes are not compilations of aggregateinformation about an individualsufficient to create a legitimateexpectation of privacy.
The Superior Court ruled that the aggregate effect
of disclosing birth and marriage indexes concerning
millions of residents supported the conclusion that
privacy interests outweighed the public interest in
disclosure. RA 188-89 (Order at 12-13) . The Globe
respectfully submits that the Court's analysis conflated
compilations that aggregate information about specific
individuals (e.g., vertical compilations, such as
criminal history record information) with compilations
that provide a limited amount of information about many
people (e.g., horizontal compilations, such as phone
books). The former implicate privacy interests, while
the latter do not.
Compilations of publicly available information are
not presumptively exempt from the Public Records Law.
See, e.g., Collector of Lynn, 377 Mass, at 158 ("lists
of real estate tax delinquents are public records");
Pottle, 395 Mass. at 862 (list of names, job
classifications, and home addresses of all employees of
the Braintree public schools); Direct-Mail Serv., Inc.
v. Registrar of Motor Vehicles, 296 Mass. 353, 354-355
33
(1937) (commercial entities may make copies "of all
certificates and licenses of motor vehicles" issued by
the Registrar).
Courts have recognized circumstances in which an
individual may have a legitimate privacy interest in
compilations that aggregate sensitive pieces of public
information about that person which otherwise only could
be retrieved by a more cumbersome process of searching
multiple public records repositories. In Reporters
Committee, for example, the press made a request under
the federal Freedom of Information Act for the "rap
sheet" of an individual associated with organized crime.
489 U.S. at 757. The information at issue included a
cumulative record of the individual's history of
arrests, charges, convictions, and incarcerations. Id.
at 757, 760. Although the rap sheet was an aggregation
of public information, the Court held that the
"practical obscurity" of the underlying information
(i.e., the effort it would take for the requestor to
retrieve the information from original sources)
warranted recognition of a privacy right on the part of
the individual, particularly in light of the "web of
federal statutory and regulatory provisions that limits
the disclosure of rap-sheet information." Id. at 762-
34
66. See also New Bedford Standard Times Pub. Co. v.
Clerk of the Third District of Bristol, 377 Mass. 404,
415 (1979) (alphabetical indexes that "aggregate
information" concerning an individual's criminal history
implicate legitimate privacy interests).
This Court applied an analogous analysis in
Georgiou v. , 67 Mass. App. Ct. 428. Georgiou involved
a request for information contained in reports of
employee injuries filed pursuant to the worker's
compensation statute, G.L. c. 152, § 6. The information
at issue consisted of the employee's name and address;
the date of injury; the employer's name and address; and
the workers' compensation insurance carrier. Id. at
429-30. The records custodian agreed to produce the
requested information with the exception of the
employees' names and addresses, which were withheld
under the privacy exemption. The trial court ruled that
because the injured employees had no privacy interest in
their names and addresses, the privacy exemption did not
apply. Id. at 433.
The Appeals Court reversed, holding that a
sufficient privacy interest existed to require the trial
court to balance the public and private interests at
issue, and remanded the case for a resolution of any
35
disputed issues of fact. Id. at 437. The Court
acknowledged that the disclosure of names and addresses
of adults does not, per se, establish an invasion of
privacy, but also observed that "more than just the
employees' names and addresses would be disclosed — also
disclosed, of necessity, would be the fact that the
identified employees are sufficiently disabled to be out
of work five or more days." Id. at 434, 435. Because
the request sought the employees' names and addresses
"conjoined with their known disabled status"
(information that had "at least a distant kinship" to
medical and personnel files), the Court held that a
privacy interest existed sufficient to trigger the
balancing of interests required by the second part of
the privacy exemption. Id. at 436, 437.
Reporters' Committee, New Bedford Standard Times,
and Georgiou share one critical characteristic - in each
case, the records at issue consisted of vertically
aggregated information about specific individuals
derived from multiple sources. In Reporters Committee
and New Bedford Standard Times, the information
consisted of criminal history record information about
individuals derived from multiple sources; in Georgiou,
36
employees' names and addresses were "conjoined" with
information about their disability.
In this case, in contrast, because the birthdate
and marriage information is not conjoined with any other
information (such as medical or criminal histories,
social security numbers or financial data), the indexes
are not compilations of vertically aggregated
information about any individual sufficient to trigger
the privacy exemption. Cases recognizing a privacy
interest in compilations of aggregated data concerning
specific individuals thus shed no light on whether the
Globe's request implicates privacy interests protected
by G.L. c. 4, § 7, cl. 26(c) and do not support the
Superior Court's legal ruling that compilations of birth
and marriage information disaggregated from other
personal information are comparable to intimate details
of a highly personal nature or otherwise trigger the
privacy exemption. RA 188-89 (Order at 12-13).
3. The Superior Court Committed Legal Error in Its Application of the Balancing Test.
When a public records request seeks "intimate
details" of a "highly personal nature," a court must
proceed to determine whether the public interest in
disclosure outweighs the asserted privacy interest. The
Superior Court's application of this balancing analysis
37
contained two legal errors. The Court first erred by
limiting its public interest inquiry to whether
birthdate and marriage indexes shed light on the
functioning of government, rather than making a broader
inquiry into whether disclosure served the public
interest. RA 189-90 (Order at 13-14). The Court also
erred by balancing the asserted privacy interests
against the "negative public interest" in disclosing
personal data, thus placing the putative privacy
interests on both sides of the scale. Id. Having so
limited the relevant inguiry, the Court concluded that
the public interest did not outweigh the asserted
privacy interests at stake, "particularly given that the
Globe admittedly could conduct its research using other
available means." RA 190 (Order at 14).
There is no doubt that the "primary purpose of G.
L. c. 66, § 10, is to give the public broad access to
government documents." Harvard Crimson, Inc. v.
President & Fellows of Harvard College, 445 Mass. 745,
749 (2006). "The Legislature's definition of public
records 'manifests a legislative intent to provide broad
public access to government documents subject only to
limited exemptions.'" Cape Cod Times, 443 Mass, at 592.
38
It also is true that the Public Records Law promotes
the public interest in "knowing whether public servants
are carrying out their duties in an efficient and law-
abiding manner." Collector of Lynn, 377 Mass, at 158.
But the statute imposes no requirement that a requester
make a showing as to whether or how any particular
request will shed light on what the government is "up
to," or demonstrate that there are no alternative
sources of the information it seeks from the government.
SJ Order at 12-13.
For example, the statute has no "'standing'
requirement but extends the right to examine public
records to 'any person' whether intimately involved with
the subject matter of the records he seeks or merely
motivated by idle curiosity." Bougas v. Chief of Police
of Lexington, 371 Mass. 59, 64 (1976). See also 950 CMR
32.05(4) ("A custodian may not require the disclosure of
the reasons for which a requester seeks access to or a
copy of a public record.").
More specifically, in applying the balancing test
called for by the privacy exemption, the Supreme
Judicial Court never has held that the "public interest"
in disclosure is limited to direct . oversight of
government officials. The statutory language certainly
39
evinces no such limitation, exempting only "materials or
data relating to a specifically named individual, the
disclosure of which may constitute an unwarranted
invasion of personal privacy [.]" G.L. c. 4, § 7, cl.
26(c).
Nor has the Supreme Judicial Court ever ruled that
the only "public interest" recognized in cl. 26(c) is
direct oversight of the government. To the contrary,
the Court has framed the test far more broadly: "Where
the public interest in obtaining information
substantially outweighs the seriousness of any invasion
of privacy, the private interest in preventing
disclosure must yield to the public interest." Police
Comm' r of Boston, 419 Mass, at 858 (quoting Collector of
Lynn, 377 Mass. at 156) (internal quotation marks
omitted) . See, e.g., Doe II, 1993 WL 496590, at *5
(recognizing "vital importance to insurance companies,
and individuals involved in motor vehicle accidents" of
obtaining Registry information about other persons
involved in accidents or to locate potential witnesses);
Doe I, 26 Mass. App. Ct. at 418 n.7 ("there is a clear
public purpose in providing injured members of the
public with accurate information as to the owners and
40
operators of automobiles and in making such data readily
available").
In this case, the Globe sought access to birth and
marriage certificates for a variety of legitimate
journalistic purposes, all of which serve the public
interest. There is no doubt that the public has a strong
interest in access to vital records. "[A]t the basis of
the vital registration system was the principle that the
records are legal statements of fact that help assure
the rights of individuals as conferred by organic laws.
Machinery was set up to collect and preserve the records,
not at first for statistical reasons, but because
authentic evidence was essential to the just
administration of law and the protection of individual
rights." Vital Statistics of the United States, Volume
I, 1950 at 3 (republished in Hetzel, A.M., History and
Organization of the Vital Statistics System (National
Center for Health Statistics 1997) (emphasis added).
In proceedings below, the DPH disputed whether
access to the indexes would shed light on the performance
of its duties, and argued that public oversight was
adequately served by its annual publications. RA 78. A
similar argument was made in Collector of Lynn, where
the government argued that the public interest in
41
disclosure was minimal "because a collector is required
by statute eventually to publish his delinquent
accounts[.]" 377 Mass, at 158 n.6. As in that case, so
too here, "the public has an interest in knowing whether
the [DPH] complies with the spirit and letter of these
statutory requirements." Id.
Even if the public interest inquiry was limited in
the manner the DPH suggests, the test is met here because
access to the Registry's indexes would provide a check
as to whether the registry and clerks are properly
recording all the state's births and marriages. RA 82.
As just one example, a 2010 State Audit found that the
Massachusetts Registry of Vital Statistics lacked
certain controls for its computer databases. RA 133,
173-74. Mass Document Retrieval, a document retrieval
service, advises users that the department's "computer
database is not always complete and errors do exist."
Id.
Public access also would assist in identifying
individuals in news reports, ferreting out voter fraud,
and studying birth and marriage trends. Id. 132-36,
172-75. See also Doe II, 1993 WL 496590, at *6 ("[N]ames
and addresses are too often insufficient for purposes of
accurately identifying the specific person sought. A
42
date of birth is very useful as an additional
identifier.") . As illustrated by the pending litigation
in Boston Globe Media Partners, LLC v. Department of
State Police, Suffolk Civ. No. 15-3396-A, rev'd, 92
Mass. App. Ct. 1112, access to birthdate records can
play a critical role in overseeing the performance of
government officials, including determining whether law
enforcement officers have been charged with criminal
offenses.
The Superior Court's application of the balancing
test failed to take into account the legitimate public
interest in obtaining the birth and marriage indexes and
essentially double counted the privacy interests at
issue by placing them on both sides of the scale.
Assuming that birth and marriage information is
considered sufficiently private to trigger the balancing
test, the case should be remanded to resolve the legal
and factual issues involved in applying the balancing
test.
D. The Superior Court Correctly Ruled that the Electronic Indexes of Birth and Marriage Records Are Not Specifically or by Necessary Implication Exempted from Disclosure by Statute.
G.L. c. 4, § 7, cl. 26(a) excludes from the
definition of "public records" materials "specifically
43
or by necessary implication exempted from disclosure by
statute." The Superior Court correctly ruled that the
statutory exemption did not apply to this case. RA 182-
86.
1. G.L. c. 46, § 33G.L. c. 46, § 33 provides in relevant part:
The state registrar shall establish, maintain and operate a centralized, automated database for the system of vital records and statistics, subject to appropriation. The state registrar shall make such automated database available to town clerks who shall use it to (i) record all births and deaths by city or town of occurrence and all marriages by city or town that issued the license; and (ii) issue certified copies of vital records.
Id. 1st par. The statute also requires that the database
"have the capacity for authorized users to enter
information" into the database, including the chief
medical examiner, licensed health professionals,
licensed funeral directors, and the courts. Id. 3rd
par.
As a threshold matter, § 33 does not even apply to
the electronic indexes the Registry makes available to
the public on its computer terminals. Rather, § 33
applies to the Registry's centralized, automated
database into which authorized users such as town
clerks, the medical examiner, funeral directors, and
courts are authorized to enter information. Id. 1st and
44
3rd pars. Any contrary interpretation would mean that
the Registry is violating § 33 every time it allows the
public to access the indexes through its computer
terminals -- an everyday occurrence for which the
Registry charges the public $9.00 an hour.
Even assuming, moreover, that § 33 somehow applies
to electronic indexes of birth and marriage information,
the statute does not "specifically" prohibit the public
from inspecting and copying the indexes (any more than
it prohibits the Registry from allowing the public to
see the indexes on computer terminals) . When the
legislature wishes to prohibit public access to
information, it knows how to say so. See,, e.g., G.L. c.
6, § 168A (probation records "shall not be regarded as
public records and shall not be open for public
inspection"); G.L. c. 41, § 97D (reports of rape and
sexual assault "shall not be public reports and shall be
maintained by the police departments in a manner that
shall assure their confidentiality"); G.L. c. 9A § 6
(applications for address confidentiality program "shall
not be a public record and shall be exempt from the
mandatory disclosure requirements of clause Twenty-sixth
of section 7 of chapter 4").
45
Section 33, in contrast, simply identifies those
who are allowed to input information into the database
and who may issue certified copies of vital records from
the database. See G.L. c. 46, § 33, 1st par. (database
"shall be available" to town clerks "who shall use it"
to record events and issue records); id. 3rd par.
(database "shall have the capacity for authorized users
to enter information"). There is nothing unusual about
distinguishing between persons authorized to make
entries into public records and persons allowed to
inspect those entries. For example, the authority of
clerks to use the court's electronic docket system to
enter information does not negatively affect the
public's right to inspect and copy information so
entered. Section 33 similarly contains no prohibitions
on the right of anyone to inspect or copy the database,
and does not speak at all to the more limited information
available in the Registry's electronic birth and
marriage indexes.
Nor does § 33 "by necessary implication" exempt
electronic indexes of birth and marriage records from
public disclosure. In order to prohibit public access
by "necessary implication," a statute must "include
language that restricts the release of specified records
to a defined group of entities or individuals." Murray,
supra, at 24. "If a statute only serves to list entities
or individuals to whom the records could be provided,
the statute will not be found to have exempt[ed]
disclosure to nonlisted groups. Id. "The statute must
explicitly restrict access to only the listed
individuals or entities in order for the records to be
withheld through the statute, operating through
Exemption (a)." Id. See, e.g., Collector of Lynn, 377
Mass. at 154-55 (statutory requirement that tax
collectors' records be made available to town auditors
at reasonable times and upon demand by a mayor, aldermen
or selectmen did not impose a restriction on the public's
right to inspect same records).
The holding and rationale of the Supreme Judicial
Court in Collector of Lynn, viewed in light of the
statutory language of § 33, compels the same conclusion
here. Assuming that § 33 even applies to the Registry's
electronic index of birth and marriage records, the
statutory language does not specifically or by necessary
implication restrict public access to those records.
2. G.L. c. 46, § 34 Section 34 of c. 46 provides:
The state registrar may enter into agreements with state and federal agencies administering
47
public health and welfare programs, registrars of motor vehicles, passport agencies or the National Association for Public Health Statistics and Information Systems to verify the existence of a Massachusetts birth, marriage or death record as an alternative to issuance of a certified copy of the record either to streamline administration of programs and services or to minimize the potential for identity theft and fraud associated with birth and marriage records, drivers' licenses, state identification cards and passports.
G.L. c. 46, § 34.
Section 34 thus authorizes the state registrar to
enter into agreements with certain government entities
and the National Association for Public Health
Statistics and Information Systems (a nonprofit
organization) to verify birth, marriage and death
records by means other than issuing a certified copy of
a vital record. The purpose of such agreements is either
to "streamline administration of programs and services"
or to "minimize the potential for identity theft and
fraud." The statute contains absolutely no language that
reasonably could be interpreted -- "specifically" or "by
necessary implication" -- as prohibiting public access
to the Registry's electronic indexes or overriding in
any way the requirements of the Public Records Law.
The Legislature could, of course, enact a law
prohibiting the bulk collection of birth and marriage
records. It just has not done so. Accordingly, the
Superior Court correctly held that none of the statutes
relied upon by the DPH specifically or by necessary
implication require the DPH to provide birth and
marriage information on no more than one person at a
time.
V. CONCLUSIONFor the foregoing reasons, appellee Boston Globe
Media Partners, LLC respectfully requests that the
judgment of the Superior Court be reversed.
BOSTON GLOBE MEDIA PARTNERS,LLC,
Dated: May 7, 2018
'a.^Jonathan M. 3BO #013850
Albano
j [email protected], LEWIS & BOCKIUS LLPOne Federal Street Boston, MA 02110-1726 +1.617.341.7700
49
RULE 16 (K) CERTIFICATIONThe undersigned hereby certifies that this brief
complies with the rules of court that pertain to the filing of briefs, including but not limited to Mass. R. App. P. 16(a) (6) (pertinent findings or memorandum of decision); Mass. R. App .P. 16(e) (references in briefs to the record); Mass. R. App .P. 16(f) (reproduction of statutes, rules and regulations), Mass. R. App .P. 16(h) (length of briefs); Mass. R. App. P. 18 (appendix to the briefs); and Mass. R. App. P. 20 (forms of briefs, appendices, and other papers).
50
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS A. C. No. 2018-P-0255
BOSTON GLOBE MEDIA PARTNERS, LLC
Appellant
v.
DEPARTMENT OF PUBLIC HEALTH
Appellee.
CERTIFICATE OF SERVICE
I, Jonathan M. Albano, hereby certify that
on May 7, 2018, I served the attached Brief of
Appellant Boston Globe Media Partners, LLC, by mailing
copies thereof, postage prepaid, to:
William W. PorterAssistant Attorney GeneralChief, Administrative Law DivisionOffice of Attorney General Maura HealeyOne Ashburton PlaceBoston, MA 02108(617) 727-2200 (voice)(617) 727-5785 (fax)Bill. [email protected],t'
&BO #[email protected] Morgan, Lewis & Bockius LLP One Federal Street Boston, MA 02110-1726 +1.617.341.7700
ADDENDUM
m
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 20I4-4074-E
IWbcg. fcet/u
T’fc'fi
D- hiA-S 'C
BOSTON GLOBE MEDIA PARTNERS, LLC
v.
DEPARTMENT OF PUBLIC HEALTH j
MEMORANDUM OF DECISION AND ORDER ON IVRUES’CROSS-MOTIONS FOR SUMMARY JUDGMENT
b-A (bj vo- to 'f 026)
Pursuant to the Public Records Law, G. L. c. 66, § 10, the plaintiff;
Partners, LLC (“Globe”), requests that the court declare that electronic inc
that have occurred in Massachusetts from 1953 through January, 2011 an<
have occurred in Massachusetts since 1983 are non-exempt public records
Boston Globe Media
exes listing all births
all marriages that
, and order the
defendant, the Department of Public Health (“DPH”), to produce them. The DPH argues that the
indexes requested by the Globe are exempt from disclosure under Exempjions (a) and (c) of the
Public Records Law.
The matter is before the court on the parties’ cross-motions for sunmary judgment. For
the reasons that follow, the DPH’s motion for summary judgment is allowed and the Globe’s
motion for summary judgment is denied.
BACKGROUND
The following is taken from the parties’ stipulated facts and exhibits.
The DPH operates the Registry of Vital Records and Statistics (“Registry”), which
collects, processes, corrects, and issues copies of Massachusetts vital rec )rds such as birth, death, and marriage records. The Registry maintains paper birth and marriage jecords in a locked vault,
/
which is not open to the public. The Registry has a supervised research roc
is open during regular business hours and contains computer terminals (“pi
terminals”) through which the public can access birth and marriage information.
m in Dorchester that
blic-facing
o databases: (1) a
occurred in the
These terminals can search birth and marriage information using tvw
database created in 1987 that contains information regarding (a) births that' <
Commonwealth from 1987 through approximately January 2011, and (b) marriages that have
occurred since 1983; and (2) a database created in 2008 that contains birth(information from
1953_ through 1986. as well as scanned images of birth certificates fonthis periods Neither of
these databases contains content that is restricted from public examination] by statute. See e.g., G. L. c. 46, § 2A (prohibiting public from examining birth or marriage recirds of persons bom
out of wedlock); G. L. c. 46, § 2B (prohibiting public from examining preidoption birth
|certificates); G. L. c. 46, § 13 (h) (prohibiting public from examining origiinal record after record
has been amended to reflect adoption, paternity or nonpaternity determination, or sex
reassignment).
The public-facing terminals cannot print and there are no photocoj y machines in the
research room. The public-facing terminals also do not display an index c':
contained in the databases such that a visitor could scroll through a list ofjall entries in a
database. Instead, for the first database, a visitor must input at least the first few letters of a last
name to initiate a query and the terminal will display information related icmly to the specific
query. For example, by typing the letters “AA,” a visitor could scroll through a list of names of people whose last names begin with “AA” in the 1987-2011 birth certificjite index as well as the
j1983-to-present marriage certificate index. For the second database, visitors can search by
additional criteria, such as last name, first name, middle name, gender, cify/town of birth,
f all the records
2
mother’s first name, mother’s last name, father’s first name, and father s 1 ist name, and the
terminal will display information related only to that specific query. For example, a visitor could
search for all the births that occurred in the City of Somerville in a given 3 ear. Each entry
contains a person’s birth date, last name, first name, middle name, birth ci y, and mother s first
ficate with more
.egistry clerk to
irough the public-
name. A visitor can click on the file name to see a person’s full birth certi
detailed information. To examine a physical record, a visitor must ask a I
retrieve it from the locked vault.
Thus, the electronic birth certificate index available to the public tl
facing terminals contains: last name, first name, date of birth, place of bit h, mother s/parent s
first name, father’s/parent’s first name, and the volume and page number where the birth
certificate is recorded. For the years 1953-1986, the person’s middle nam
certified copy of a birth certificate would contain: the person s first, midd
father’s first, middle, and last name, mother’s first, middle, and maiden m
first, middle, and last name, street and city address of both parents, place 1
date of birth of both parents, parents’ ages at the time of person’s birth, pa rents’ race, parents’
occupations, and name and address of the attendant at birth.
Further, the electronic marriage certificate index available to the public through the
public-facing terminals contains: first and last name, date of marriage, pi
was filed, marriage certificate number, and location of the record in the v;
of a marriage certificate would contain: spouses’ maiden and married nai
birth, spouses’ occupations, spouses’ street and city addresses and zip cocj
2 is also listed. A
e, and last name,
me, mother’s present
>f birth of both parents,
ice where the license
ult. A certified copy
ties, spouses’ dates of
es, number of
marriages for each spouse, maiden names of spouses’ mothers, spouses’ 1 ithers names, date and
3
of the person who
amendment to any
place of marriage, including, if applicable, the church name, and the name i
performed the ceremony.
The Registry routinely updates the databases in real time to reflect
vital record. Once an amendment is made, the Registry removes the original information from
the public-facing terminals if it has become restricted information, e.g., biological parents’i
names after adoption, name and sex information after gender reassignment etc.
In 2010, the Legislature enacted G. L. c. 46, § 33, requiringthe Re
=maintainandoperateacentralized,automateddatabaseTorthesystemoLi
jistry to “establish,
ital records and
statistics....” Pursuant to this mandate, the Registry launched an electronic birth registration
system, Vitals Information Partnership (“VIP”). Any birth occurring after January 1,2011 is
recorded in VIP. In addition, the Registry has included birth data from 1953 to 2010 in VIP.
Members of the public cannot search the VIP database through the public:
other means. A visitor would have to ask a Registry employee to retrieve
record of a specified person bom after January 1,2011. The Registry and
as town clerks and medical facilities update the VIP database in real time
facing terminals or any
the physical birth
authorized users such
;o reflect amendments
of any records. See G. L. c. 46, § 33 (database “shall have the capacity for authorized users to
enter information” relating to, among other things, “acknowledgments of paternity” and
‘adoptions”).
On May 10, 2013, the Globe requested, pursuant to G. L. c. 66, §
of [the Registry’s] computerized index of births [and] marriages ... for ali
electronic form,” which would cover “[b]irth[s] (1987 - present)” and “[r i]arriage[s] (1983 to
present).” The Globe has since clarified that its request does not encompass the VIP database.
0, “an electronic copy
years available in
1 The Registry plans to expand VIP to include marriage and other vital-event data.4
The Globe’s request amounts to birth information for approximately 4.6 million
luals. The DPH
c Records Law
individuals and marriage information for approximately 2.2 million indivk;.
declined to turn over the indexes and argued that they fell within two Publj<
exemptions: (1) Exemption (a), which covers materials or data “specifically or by necessary
implication exempted from disclosure by statute,” G. L. c. 4, § 7, Twenty-sixth (a) (“Exemption
(a)”); and (2) Exemption (c), which covers “materials or data relating to a Specifically named
individual, the disclosure of which may constitute an unwarranted invasion of privacy.” G. L. c.
4, § 7, Twenty-sixth (c) (“Exemption (c)”). Ultimately, the Supervisor of J?3ublic Records
determined that Exemption (a) applied to electronic copies of the Registry/s computerized
indexes of birth and marriage records. Specifically, he reasoned that “[i]n|
access to a select group or [sic] individuals performing a specific function'
restricting database
[G. L. c. 46, § 33] by
implication identifies the purpose of the database as not to make its contei ts available to the
public, but to be used as an administrative tool by government officials.”
DPH had made a “compelling argument” that Exemption (c) also applied
3e also stated that the
:o the records because
disclosure “could conceivably permit an individual to identify modifications or changes made to
certain birth and marriage records, disclosing information that could impli cate significant privacy
interests.” Thereafter, the Globe filed this action.
DISCUSSION
A motion for summary judgment should be granted where there is
any material fact and the moving party is entitled to judgment as a matter
P. 56(c); Miller v. Mooney, 431 Mass. 57, 60 (2000).
The Public Records Law, G. L. c. 66, § 10, requires public access
no genuine issue as to
of law. Mass. R. Civ.
to various records and
documents in the possession of public officials. See Harvard Crimson, h \c. v. President &
5
Fellows of Harvard Coll, 445 Mass. 745, 749 (2006) (statute was enacted “to give the public
broad access to government documents” to ensure that business of govern nent is conducted in
the open and is subject to public scrutiny). The class of records to which le public must be
afforded access is defined in G. L. c. 4, § 7, Twenty-sixth. This section establishes a broad
definition of public records but contains twenty exemptions. Records fall
an exemption are not subject to mandatory public disclosure under G. L. c
Public Records Law, there exists “a presumption that the record sought is
ng within the scope of
66, § 10. Under the
public,” G. L. c. 66, §
lO(e))and-a-govemmentagencywhichrefusestocomply-.witharequestf jtdiselosurehasthe
burden of proving “with specificity” that the information requested is witl
statutory exemptions to disclosure.2 Globe Newspaper Co. v. Police Com
Mass. 852,857 (1995); see Attorney Gen. v. Assistant Comm V of the Real
Boston, 380 Mass. 623,625 (1980) (because of statute’s presumption in fi
statutory exemptions “must be strictly construed”). The DPH relies on Ej
I. Exemption (a)
General Laws c. 4, § 7, Twenty-sixth (a) excludes from the definit
materials or data “specifically or by necessary implication exempted from
The DPH argues that the indexes requested by the Globe are by necessary
in one of twenty
n'r of Boston, 419
Property Dep ’t of
vor of disclosure,
emptions (a) and (c).
on of “public record”
disclosure by statute.”
implication exempt
i St 2016, Ci 121, § 10. court proceeding ... be upon the custodian to
2 The Legislature revised G. L. c. 66, § 10 effective January 1,2017. Se Relevant to this case, the Legislature removed the language in 10(c) that “In any there shall be a presumption that the record sought is public, and the burden shal prove with specificity the exemption which applies.” Further, the Legislature en acted G. L. c. 66, § 10A(d)(lXiv) which states: "a presumption shall exist that each record sought is —u,: J L~shall be on the defendant agency or municipality to prove, by a preponderance oj record or portion of the record may be withheld in accordance with state or fed©121, § 10. The Boston Globe filed its records request on May 10,2013. As the any issue with respect to the differences between the statutes, 1 will consider the of G. L. c. 66, § 10 that existed until January 1,2017. See People for the Ethica Department of Agricultural Resources, 477 Mass. 280,281 n.3 (2017).
public and the burden ’the evidence, that such . allaw.” See St. 2016, c. parties have not raised request under the version Treatment of Animals v.
6
from disclosure by G. L. c. 46, §§ 33 and 34 because these statutory provisions reflect that birthIand marriage data should not be disseminated wholesale to the public. The DPH also contends
disclosure under
rtain birth and
that the indexes are specifically and by necessary implication exempt from
statutes that prohibit the public from examining information contained in c
marriage records, i.e., G. L. c. 46, §§ 2A, 2B, and 13.
A. General Laws c. 46, §§ 33 and 34
As discussed above, in 2010, the Legislature required the Registry
and operate a centralized, automated database for the system of vital recor<
G. L. c. 46, § 33. Section 33 further provides that the Registry “shall makedatabase available to town clerks who shall use it to (i) record all births an]
town of occurrence and all marriages by city or town that issued the license; and (ii) issue
certified copies of vital records.” G. L. c. 46, § 33. Further,
[t]he database shall have the capacity for authorized users to enter information required for: (i) standard certificates of live birth and as required by the commissioner for administrative, research and statistical purposes under section 24B lof chapter 111; (ii) acknowledgments of paternity; (iii) standard certificates of death; and (iv) fetal death reports. The database shall have the capacity for the chief medical (examiner to enter information required for a medical examiner’s certificate of death and for licensed health professionals and licensed funeral directors to enter information required for standard certificates of death. The database shall also have the capacity for <pourts in the commonwealth to enter information required for amendment of birih records following adjudications of paternity under chapter 209C and adoptions underjehapter 210.
o “establish, maintain
s and statistics ....”
such automated
deaths by city or
G. L. c. 46, § 33. Finally, the statute states that “[a]ll certified copies issued from the database
shall be identical in size and format and shall have security features that de ter alteration,
counterfeiting, duplication or simulation of vital records and shall meet applicable federal and
state standards established for this purpose.G. L. c. 46, § 33.
The parties dispute whether section 33 applies to all databases maintained by the Registry
or just to the VIP database from which the Globe is not seeking information. In particular, the
7
DPH contends that section 33 reflects a policy against bulk disseminatior
information, regardless where a discrete record happens to be registered s
More specifically, the DPH argues that the use of the phrase “authorized
implies that the general public may not access information in the birth an<
of birth and marriage
t a particular time,
isers” necessarily
marriage databases
and that the public’s access is limited to obtaining “certified copies of viml records.” This
argument is supposedly supported by language in G. L. c. 46, § 34 that th
into agreements with certain agencies to verify the existence of birth, mar
bvmeansotherrthanacertifiedcopyoftherecordfhithertostreamlineac
programs and services or to minimize the potential for identity theft and fi
birth and marriage records. I disagree. :
The phrase “authorized users” is followed directly by the words ‘
; Registry may enter
■iage, or death records
ministrationof.______
aud associated with”
to enter information,”
indicating that the Legislature intended that only certain “users” are “authorized” “to enterIinformation.” This language does not imply that only certain “users” can have access to the
information contained in the database. Nor do the statute’s requirements jjegarding the issuance
of certified copies of vital records imply that the public cannot have accesf to the information
contained in the database; the statute simply specifies the requirements foi any such certified
copy. And while the Legislature has acknowledged that there is a potential for identity theft and
fraud associated with “certified cop[ies]” of birth and marriage records, a j birth or marriage record contains much more identifying information than;
the index available to the public through the public-facing terminals. Thai
‘certified copy” of a
the records included in
the Legislature was
concerned with the potential release of certified copies of birth and marriage records in bulk to
various agencies does not imply that it intended to restrict the public’s rig! it, under G. L. c. 66, §
10, to the indexes containing less identifying information. Compare Champa v. Weston Public
8
vspaper Co. v. District
Schools, 473 Mass. 86, 91 n.8 (2015) (finding that although 20 U.S.C. § l|232g does not
expressly prohibit disclosure of “education records,” it was sufficient to satisfy requirement that
statute exempt data or information “by necessary implication” because it i onditions receipt of
Federal funds on nondisclosure of education records). To the extent that there is any ambiguity
in § 34, that ambiguity must be resolved in favor of disclosure. Globe Ne
Attorney for the Middle Dist., 439 Mass. 374, 383 (2003).
B. General Laws c. 46, §§ 2A, 2B, and 13
As stated above, these statutes restrict the public from examining cjertain content in birth
certificates. The Registry updates its databases regularly to reflect when z
amended. When information becomes restricted, the Registry removes it
accessible to the public. Because an index produced at a certain time could contain information
that later becomes restricted, the DPH argues that these statutes specifical
implication exempt the indexes from disclosure. For example, if a person
vital record has been
jrom its databases
iy and by necessary
has been adopted, the
Registry changes the birth record to reflect the adoptive parents’ names an d removes the
biological parents’ names. But birth indexes from prior years would list tile names of the
biological parents. Thus, if indexes are created at different points in time,! someone could
compare these indexes to glean information that has been deemed not publ ic by the Legislature,
e.g., the names of one’s biological parents after adoption.
I do not disagree with the DPH, but the issue is not presented here because the Globe has
clarified that it is not seeking indexes created at different periods of time; it is seeking the
indexes “in the form in which they currently are available to the public on the Registry’s public
i
facing terminals.”3 My decision is expressly limited to the request presen
to any future request that may be made.
I conclude that the DPH has not met its burden of proving that the
Globe are exempt from disclosure under Exemption (a),
II. Exemption (c)
General Laws c. 4, § 7, Twenty-sixth (c) excludes from the definit
“any ... materials or data relating to a specifically named individual, the d
;ed and does not extend
indexes sought by the
on of “public record”
isclosure of which may
^eonstitute.an^unwarranted Jnvasion-of privacy.” G.-L..c.J. § 7. Xwenty-^si th (c). In determining
whether this exemption applies, the court must “balance[e] any claimed invasion of privacy and
the interest of the public in disclosure.” Globe Newspaper Co., 419 Mass! at 858. “Where the(
public interest in obtaining information substantially outweighs the seriou mess of any invasion
of privacy, the private interest in preventing disclosure must yield to the public interest.”
Attorney Gen. v. Collector of Lynn, 377 Mass. 151,156 (1979). In identif dug the existence of
privacy interests, courts consider whether disclosure would “result in personal embarrassment to
an individual of normal sensibilities, whether the materials sought contain! intimate details of a
highly personal nature, and whether the same information is available from other sources.”
Globe Newspaper Co., 419 Mass, at 858 (citations and quotations omitted;
weighs the public’s interest in disclosure, including its interest “in knowin;
. The court then
l whether public
s sex reassignment3 The same reasoning applies to the DPH’s argument regarding a person’s potentially being released in violation of G. L. c. 4, § 7, Twenty-sixth (c). See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983) (“[M]edical... information” is “absolutely exemptfrom mandatory disclosure” so long as the “information [is] of a personal nature particular individual”). Because the Globe has not requested indexes created at dli it would not have access to information that would enable it to determine that an [individual has completed sex reassignment.
and relate[s] to a ifferent periods of time,
10
:r,” against the private
ns the following
servants are carrying out their duties in an efficient and law-abiding marine
interest. Attorney Gen., 377 Mass, at 158.
The electronic birth certificate index requested by the Globe contair
information: last name, first name, date of birth, place of birth, mother’s/parent’s first name,
father’s/parent’s first name, and for the years 1953-1986, the person’s middle name. The
Globe’s request amounts to birth information for approximately 4.6 millio i individuals. The
electronic marriage certificate index requested by the Globe contains the following information:
first and last name, date of marriage, place where the license was filed, an<
number. The Globe’s request amounts to marriage information for approx
individuals. The requested birth and marriage information is publicly aval
facing terminals, albeit not in the bulk form requested by the Globe.
The disclosure of information regarding a person’s birth and/or ma'
marriage certificate
imately 2.2 million
able on the public-
fiage, in most cases,
would not result in personal embarrassment to an individual of normal sensibilities. Compare
Attorney Gen., 377 Mass, at 157 (publication of one’s name on list of tax c
“certainly result in personal embarrassment to an individual of normal sen
elinquents would
"abilities”).
It is a closer question whether the information requested contains intimate details of a
omitted) (under
hildren, identity of
lption, family fights
ate detail” is to be
highly personal nature. See Attorney Gen., 380 Mass, at 626 n.2 (citations <
Federal law, “intimate details” may include “marital status, legitimacy of cl
fathers of children, medical condition, welfare payments, alcoholic consuni
[and] reputation”). Whether a piece of information is considered an “intini i
determined in light of “community mores and sensibilities.” Doe v. Registrar of Motor Vehicles,
26 Mass. App. Ct. 415,424 (1988) (citations and quotations omitted). Dilcrete pieces of
information such as an individual’s name, birth date, place of birth, and date of marriage are
11
i
usually not intimate details of a highly personal nature especially considering their availability
56 U.S. 595, 601
, employment history,
through other sources. See Department of State v. Washington Post Co.,
(1982) (“Information such as place of birth, date of birth, date of marriage,
and comparable data is not normally regarded as highly personal...”); Doe v. Registrar of Motor
Vehicles, 1 Mass. L. Rptr. 156, *7 (June 8, 1993) (Gershengorn, J.) (date elf birth is not
information that person of “normal sensibilities” would go to great lengthy
also can be gleaned from other sources).
Even if discrete pieces of the information the Globe seeks are not
details of a highly personal nature, however, the aggregate effect of other
on the privacy of the total number of persons whose data would be dissent i
disclosure here. See Doe, 26 Mass. App. Ct. at 425; see also Georgiou v.
; to keep private and it
onsidcred intimate
ect of other disclosed
lisclosed information
n'inated weighs against
Commissioner of the
Dep ’t of Industrial Accidents, 67 Mass. App. Ct. 428,434-435 (2006) (wl ile disclosure of names
and addresses does not, per se, establish invasion of privacy, aggregate efi
information “may intensify the invasion of privacy and weigh against disc losure”). As noted
above, the Globe’s request amounts to birth information for approximately 4.6 million
individuals and marriage information of approximately 2.2 million indivic
access to compiled personal information in the indexes maintained by the
facilitate identity theft or other malicious uses in a manner that most indi\
an invasion of privacy. See Doe, 26 Mass. App. Ct. 421-422 (citation anc
(noting advent of modem data processing technology which permits aggr<
personal information into large central data banks). Although the Globe 1
the purpose of its request, a ruling that the aggregated information must b
available upon request would not allow differentiation among requesting
uals. Moreover, ready
Registry would
iduals would consider
quotations omitted)
gation of pieces of
as stated that this is not
s made publicly
jarties. See National
12
Ass’n of Retired Fed. Employees v. Homer, 879 F.2d 873, 875 (D. C. Cir. 1989) (because court
cannot limit disclosure of records to particular parties or for particular uses, it would be illogical
and unfair to person whose privacy is at stake for court not to consider im
privacy of the more general disclosure; “[i]n this context, the privacy interest of an individual in
9act on personal
avoiding the unlimited disclosure of his or her name and address is signifi
Finally, that the information requested may be derived elsewhere i
:ant
educes the expectation
of privacy, but is not dispositive. Doe, 26 Mass. App. Ct. at 427, citing Aijorney Gen., 377
Mass, at 158. Although the material is available here through the public-facing terminals,
“[u]sing that route to obtain the data would require ... a far more cumbers
26 Mass. App. Ct. at 427; see also US Dep't of Justice v. Reporters Comm
ime procedure.” Doe,
ttee, 489 U.S. 749,
764 (1989) (issue was whether compilation of otherwise hard-to-obtain information alters
privacy interest implicated by its disclosure; “[plainly there is a vast difference between the
public records that might be found after a diligent search of courthouse files, county archives,
and local police stations throughout the country and a computerized summary located in a single
clearinghouse of information”).
After weighing these factors, I conclude that the release of the elec ronic birth and
marriage indexes would result in the invasion of privacy of a substantial number of individuals.
I next must weigh the public’s interest in disclosure. The public’s interest is usually
limited to its interest “in knowing whether public servants are carrying out; their duties in an
efficient and law-abiding manner.” Attorney Gen., 377 Mass, at 158; US Dep’t of Defense v.
Federal Labor Relations Authy., 510 U.S. 487,497 (1994) (quotations and
public interest analysis under Federal law is limited to “the extent to which;
information sought would shed light on an agency’s performance of its sta
citation omitted)
disclosure of the
utory duties”). In the
13
lumbers of persons
sirs is the public
circumstances of this case, however, the public’s interest in disclosure alio includes “the
negative public interest” in making the compiled personal data of so many individuals available
electronically for public scrutiny. Doe, 26 Mass. App. Ct. at 425 (“Consideration of privacy
interests on both sides or the balance cannot be avoided because the vast
[affected] are themselves a significant part of the public. In large part, th
interest which is being weighed.”).
The only reason given by the Globe that potentially affects the public’s interest4 is its
^eontentionithafaecessjvouldiproyide.a-check-on^whethentheRegistrydstroperly-recording____
births and marriages; more specifically, the Globe could calculate the number of certificates
recorded each year and in each town and compare that with Census data and other records to
search for discrepancies. The Globe has agreed, however, that the DPH publishes (1) an annual
birth report that presents detailed data on the number and characteristics of Massachusetts births
recorded in the Registry and (2) a Vital Statistics Annual Report, which includes marriage and
divorce counts, and also makes aggregate marriage data available by request. I conclude that the
public’s interest in disclosure here does not outweigh the invasion of privr cy of the substantial
number of people discussed above, particularly given that the Globe admittedly could conduct its
research using other available means.
Thus, I conclude that the DPH has met its burden of proving that d i
indexes the Globe seeks may constitute an unwarranted invasion of the pei i
individuals specifically named therein.
sclosure of the
sonal privacy of the
4 For example, enabling the Globe to identity individuals in news reports public interest.
does not affect the
14
ORDER
For the foregoing reasons, it is hereby ORDERED that Boston Gfobe Media Partners,
LLC’s Motion for Summary Judgment is DENIED and the Department ojf Public Health’s
Motion for Summary Judgment is ALLOWED. The Court declares that electronic indexes
listing all births that have occurred in Massachusetts from 1953 through January, 2011 and all
marriages that have occurred since 1983 are not public records pursuant to G. L. c. 4, § 7,
Twenty-sixth (c).
,■7) U'inKaren-F. Gree:
/
Associate Justice
DATED: August /jf2017
Tof the Superior Court
15
COMMONWEALTH OF MASSACHUSETTI
SUFFOLK ,ss. SUPERIOR (COURT CIVIL ACTION No. 2014-407'j-E
BOSTON GLOBE MEDIA PARTNERS, LLC
DEPARTMENT OF PUBLIC HEALTH
JUDGMENT,ON,CROSSrMOTlQNS FOR SUMMARY .lUDKMENT
After hearing before Karen F. Greeh, presiding justice, it is hereby ORDERED that
Boston Globe Media Partners, LLC’s Motion for Summary Judgment is DENIED and the
Department of Public Health’s Motion for Summary Judgment is ALLOWED], The Court
declares that electronic indexes listing all births that have occurred in Massachusetts since 1953
through January, 2011 and all marriages that have occurred since 1983 are not pjublic records
pursuant to G. L. c. 4 sec. 7, Twenty-sixth (c).
Attest:
Margaret M. Buckley Assistant Clerk
Date: August 28, 2017
